PERPETUAL TRUSTEES VICTORIA LTD -v- ALLEN [2012] WASC 258 (20 July 2012)

Supreme Court of WA|2012-07-20|Before: Beech J

1 The plaintiff, Perpetual Trustees Victoria Ltd (Perpetual), seeks an order that the secondnamed defendant, Ms Kerry Allen, be committed for her contempt of orders for possession of property made in favour of Perpetual.

2 On 28 June 2011, Master Sanderson gave summary judgment in favour of Perpetual in its action for possession of the property known as 41 Toledo Circuit, Port Kennedy (the Property). The master ordered that Ms Allen deliver up to Perpetual vacant possession of the Property.

4 On 13 March 2012 the Sheriff executed the PSD Order, taking possession of the Property on behalf of Perpetual.

5 Perpetual claims that Ms Allen, from midApril 2012 to 26 May 2012, occupied the Property in contempt of these orders.

6 By chamber summons dated 7 May 2012, Perpetual applies for an order for committal of Ms Allen for contempt. At the hearing of the application, Perpetual applied for leave to amend the terms of its application. Ms Allen did not oppose the grant of leave and I granted leave accordingly. Ms Allen was given leave to file any further written submissions in defence of the allegation of contempt by 13 July 2012. On 11 July 2012, she filed submissions, an affidavit and numerous attachments. I will say more about that later in these reasons.

7 By the amended chamber summons, Perpetual applies for an order that Ms Allen be committed to prison for contempt of court for her disobedience of the orders of Master Sanderson on 28 June 2011, alternatively of the PSD Order.

8 The grounds of application are stated to be that Ms Allen disobeyed the order for possession by occupying the Property from on or about 11 April 2012, after execution of the PSD Order dated 21 February 2012.

9 Perpetual relied on an affidavit of Mr Geoffrey Shaw and two affidavits of Mr Jeff Hillman.

10 Ms Allen filed two affidavits in late May in support of an application she brought against Perpetual. At the hearing of Perpetual's application, it sought to rely on certain parts of these affidavits as containing admissions against interest made by Ms Allen. In the absence of any objection from Ms Allen, those parts of Ms Allen's affidavits were received into evidence.

11 Ms Allen denies that she was guilty of any contempt. She crossexamined the deponents of the affidavits upon which Perpetual relies. She also crossexamined Perpetual's solicitor, notwithstanding that at the hearing Perpetual did not rely upon any of the three affidavits sworn by its solicitor. Through counsel, Perpetual indicated its preparedness to make its solicitor available for crossexamination, in circumstances where Ms Allen expressed her desire to crossexamine Perpetual's solicitor.

12 At a directions hearing on 17 May 2012, I directed that Ms Allen file and serve any affidavits upon which she intended to rely by 8 June 2012.

13 Prior to the hearing on 29 June 2012, Ms Allen did not file any affidavits in opposition to Perpetual's application. Nevertheless, at the hearing of the application, she expressed her desire to give evidence in response to the allegation of contempt. She gave evidence and was crossexamined.

14 On 11 July 2012, Ms Allen filed an affidavit, submissions dated 10 July 2012 and numerous attachments. As I have said, at the hearing on 29 June 2012, I gave leave to Ms Allen to file submissions. I did not give leave to file or rely upon any affidavit or further evidence. I would not give Ms Allen leave to do so. That is because, in my view, she had ample opportunity prior to and at the hearing of 29 June 2012 to put forward the evidence on which she intended to rely.

15 For that reason, I do not treat anything in the material filed by Ms Allen on 11 July 2012 as evidence. I have received it as her submissions, setting out her position and the position she invites the court to adopt, but not as having any evidentiary value.

16 In any event, in case I were wrong in adopting the approach I have just stated, I have considered the material on the alternative assumption that it is evidence. On that approach, it does not affect the findings I make, as set out below. Many of the factual assertions relate to matters which, if anything, might have borne upon whether the order of Master Sanderson and the PSD Order should have been made, rather than whether Ms Allen has acted inconsistently with the orders. Others repeat assertions already made by Ms Allen.

17 It is convenient to outline some general principles, before setting out my findings of fact.

18 An allegation of contempt is criminal in nature. All elements must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525.

19 It has often been observed that criminal contempt of court is the only common law criminal offence in Western Australia: R v Lovelady; Ex parte Attorney General [1982] WAR 65, 66; Briggs v Lunt [No 4] [2011] WASCA 145 [34]. However, contempt by disobedience to an order or judgment of the court now has a statutory setting in the Civil Judgments Enforcement Act.

20 Under the Civil Judgments Enforcement Act, a person who disobeys a judgment requiring a person not to do, or to do an act, apart from a money judgment or a judgment for possession, is guilty of a contempt of court: see s 97 and s 98.

21 Contempt by disobedience of a time for payment order may constitute a contempt in various circumstances: see s 88 s 90.

22 Judgments for possession are the subject of div 1 of pt 5 of the Civil Judgments Enforcement Act. Section 95 permits a person entitled to the benefit of a judgment for possession to apply to the court for a property (seizure and delivery) order. Section 96 sets out the effect of the property (seizure and delivery) order. By s 96(5), if a person unlawfully resumes possession of real or personal property seized from the person under a property (seizure and delivery) order, s 98 applies as if the person had disobeyed a judgment to which s 97 and s 98 apply.

23 There may be a question whether s 96(5) should be taken to be an exhaustive statement of the circumstances in which a person in contempt of an order for possession. It is not necessary to determine that question. That is because Perpetual's application specifically relied upon Ms Allen's alleged conduct in occupying and thereby resuming possession after the PSD Order dated 21 February 2012.

24 The underlying rationale for the exercise of the contempt power is to uphold and protect the effective administration of justice: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 107; Miller v Eurovox Pty Ltd [2004] VSCA 211 [29]; Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, 313 314.

25 The plaintiff's primary case is that the defendant is guilty of criminal contempt. Deliberate or contumacious defiance of a court order constitutes criminal contempt: Witham v Holloway (530); Australasian Meat Industry Employees' Union v Mudginberri Station (108).

26 If a breach of an order is a result of 'casual or accidental or unintentional disobedience' then there is no power to impose a fine: Witham v Holloway (541); Australasian Meat Industry Employees' Union v Mudginberri Station (109 115).

27 In order to prove contempt by disobedience of an order, it is necessary to show that the disobedience was deliberate. That does not require a specific intention to break the law. What is required is proof that the alleged contemnor was aware of the facts that make the act a breach of the order: International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201 [43] [68]; Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195 [5].

28 It is also necessary to prove that the alleged contemnor knew of the terms of the relevant order, or at least of the substance of the orders: Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; (2001) 122 A Crim R 166 [1] [53]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 [31] [32]; Deckers Outdoor Corporation Pty Ltd v Farley (No 6) [2010] FCA 391 [130], [147].

29 Proof of contempt must be by admissible evidence. A contempt application is not an interlocutory application, so hearsay evidence is not admissible under O 37: Briggs v Lunt [No 4] [42].

30 Perpetual is bound by its particulars of the alleged contempt: R v Pearce (1992) 7 WAR 395; Kendall C & Curthoys J, Civil Procedure in Western Australia [55.5.1].

31 Unless stated otherwise, the findings of fact I set out below reflect my satisfaction beyond reasonable doubt.

32 Ms Allen was aware of the order for possession made by the master on 28 June 2011. She was present when the order was made. Further, she appealed against the order. The appeal was dismissed on 25 November 2011, following the making of a springing order: see Allen v Perpetual Trustees Pty Ltd [No 2] [2011] WASCA 240.

33 On 2 November 2011, Ms Allen made an application to the Federal Magistrates Court for orders against Perpetual in action number PEG 313 of 2011. On 17 February 2012, Lindsay FM made orders summarily dismissing Ms Allen's action in PEG 312 of 2011.

34 The master's order of 28 June 2011 and the PSD Order are and have been at all relevant times valid and subsisting orders. Neither order has been stayed or had its operation suspended.

35 Ms Allen says she was not given notice of the application for the PSD Order. This contempt application is not an occasion for ventilating an issue about the efficacy of the PSD Order. An order of the court is valid unless and until it is set aside, and must be obeyed.

36 What is relevant to this contempt application is whether Ms Allen knew of the PSD Order, at least from midApril 2012. I deal with that below.

37 On 13 March 2012, the PSD Order was executed. I accept Mr Shaw's evidence of what occurred on that day. Two officers from the Sheriff's Office, some police officers and a locksmith attended the Property. The locks were changed. An officer from the Sheriff's Office placed a notice on the front door of the Property and the front gate of the Property. The notice stated that under authority of the PSD Order, possession of the Property had been given to Perpetual on 13 March 2012 at 10.00 am. The notice also stated that entry to the Property without permission of Perpetual may lead to police prosecution.

38 I am satisfied beyond reasonable doubt that from 13 March 2012, Ms Allen knew that the Sheriff had taken possession of the Property on behalf of Perpetual, and that Perpetual was in possession of the Property pursuant to the PSD Order. I do not accept that there is force in any submission made by Ms Allen that the eviction was invalid or ineffectual on the ground that Ms Allen was not given prior notice of the eviction.

39 On 23 March 2012, Perpetual's solicitors wrote to Ms Allen stating that her personal possessions remained on the Property, and requesting that she remove them by 10 April 2012 (exhibit B). To that end, she was asked to contact a named person to arrange a mutually convenient time to attend the Property.

41 On 11 April 2012, Mr Jeff Hillman, a process server employed by Concord Credit Management Services Pty Ltd, attended at the Property on instructions from and on behalf of Perpetual.

42 Mr Hillman entered by using a key to unlock the padlock and chain on the gate, and a key to unlock the front door.

43 There were boxes of clothes inside the front door. Shortly after Mr Hillman went in the front door of the Property, he was confronted by Ms Allen's son Brett. Mr Hillman pushed him out the front door and locked it.

44 Shortly after that Mr Hillman heard voices inside the Property. He went inside and saw Ms Allen and her son Brett. Ms Allen and Brett entered the Property through the garage of the Property. Ms Allen explained in her evidence that at that stage the garage door was faulty.

45 I accept Mr Hillman's evidence that Ms Allen and Brett forced him out the front door, pushing and shoving him, with Brett throwing occasional punches. Ms Allen accepted in crossexamination that she pushed Mr Hillman.

46 In her oral evidence, she described this as using 'reasonable force to remove a trespasser' (ts 113). That view of things reflects Ms Allen's fundamental unwillingness or inability to accept that the effect of the orders of this court is that it is Perpetual, not Ms Allen, who is entitled to possession of the Property. That was also apparent in other parts of Ms Allen's evidence (see ts 117, 121). It is also reinforced by Ms Allen's submissions of 10 July 2012 (see pars 1 6 and 10 18).

47 On 11 April 2012, Ms Allen asserted to Mr Hillman that he would be charged with trespassing, and that she had called the police. She gave Mr Hillman a notice, a copy of which is exhibit A. A copy of the notice is Annexure A to these reasons.

48 The notice was headed 'no trespassing on this property'. It stated that no person was to enter on 'my' property without 'my' express permission or without a warrant issued under the authority of the Crown. Ms Allen accepted in crossexamination that she prepared the notice and that the reference to 'my' was a reference to her (ts 116). Again, Ms Allen's conduct in displaying and handing out this notice reveals her fundamental misconception about who was (and is) entitled to control entry to the Property.

49 Mr Hillman's evidence is that Ms Allen said to him that she had been in the Property several times to do packing and would continue to do so. Ms Allen denied saying that (ts 113). I am not satisfied beyond reasonable doubt that Ms Allen made that statement.

50 On 13 April 2012, Ms Allen returned to the Property with a locksmith. At her direction, the locksmith changed the locks. She had the garage locked. Ms Allen said in her evidence that her intention was to secure the Property so nobody could get into it (ts 123).

51 Ms Allen kept possession of the keys. She did not give or offer the keys to Perpetual until 26 May 2012. In crossexamination, Ms Allen was unable to explain why she did not give the keys to the Property to Perpetual before late May 2012 (see ts 122).

52 I am satisfied beyond reasonable doubt that Ms Allen intended to exclude Perpetual from the Property. I reject her submission, unsupported by evidence, that it was her intention to secure the Property for both herself and for Perpetual. Further, had Ms Allen asserted that in her evidence, I would not have accepted it. In my view, the compelling inference from Ms Allen's conduct was that she did not accept Perpetual's right to be in possession of the Property and she took steps to exclude Perpetual from entering the Property.

Did Ms Allen unlawfully resume possession of the Property, and occupy it, from midApril 2012 to late May 2012?

53 Perpetual's case, as stated in the chamber summons, is that Ms Allen committed contempt by occupying the Property. Perpetual contends that she occupied the Property from about 11 April 2012 to 26 May 2012 by unlawfully resuming possession of it.

54 In light of the factual findings I have made, and for the reasons that follow, I am satisfied beyond reasonable doubt of Perpetual's case.

(a) Ms Allen still had some of her belongings at the Property, notwithstanding that she had received a written request from Perpetual to remove her belongings by no later than 10 April 2012 (see exhibit B);

(b) Ms Allen was asserting a right to exclude persons, including authorised agents of Perpetual, from entering the Property. She asserted that Mr Hillman was a trespasser. Further, by her notice, she asserted a right to control who would enter the Property;

(c) further, Ms Allen had the locks changed and thereby was able to exclude others from entering the Property. That included Perpetual. Thus Perpetual was excluded from entering the Property, much less exercising its right to possession; and

(d) Ms Allen intended to exclude Perpetual from entering the Property.

56 I am satisfied that by her conduct summarised in the preceding paragraph, Ms Allen unlawfully resumed possession of the Property within the meaning of s 96(5) of the Civil Judgments Enforcement Act. It is not necessary that a person reside at a property in order to resume possession of it for the purposes of s 96(5). A person who intentionally prevents the beneficiary of a property (seizure and delivery) order from entering the property, or otherwise exercising its rights of possession, and who asserts a right to control entry to the property has, in my opinion, thereby unlawfully resumed possession of it for the purposes of s 96(5) of the Civil Judgments Enforcement Act.

57 Further, it is not necessary to be living at or physically present at a property in order to have occupied it, in the sense in which that term is to be understood in the chamber summons. For corresponding reasons, in my view, by the conduct summarised in [55] above, Ms Allen is taken to have been in occupation of the Property from no later than 13 April 2012 until 26 May 2012.

(1) Ms Allen was aware of the order for possession by the master [32]; and

(2) from 13 March 2012 she knew that the Sheriff had taken possession of the Property on behalf of Perpetual, and that Perpetual was in possession of the Property pursuant to the PSD Order [38].

59 I am satisfied beyond reasonable doubt that Ms Allen knew that her conduct was inconsistent with the master's order for possession and the PSD Order. I find that Ms Allen acted inconsistently with those orders, knowing that her acts were inconsistent with those orders, because she did not accept those orders.

60 For these reasons, I am satisfied beyond reasonable doubt that Ms Allen committed the contempt alleged.

61 I will hear submissions from the parties as to the appropriate penalty.

Judgments Enforcement Act 2004

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